NOVA SCOTIA COURT OF APPEAL
Citation: D.E. & Son Fisheries Ltd. v. Goreham, 2004 NSCA 53
Date: 20040414
Docket: 214059
Registry: Halifax
Between:
D.E. & Son Fisheries Limited
Appellant
v.
Dwayne Goreham, Danny Shand and Ricky Smith
Respondents
Judges: Bateman, Oland and Fichaud, JJ.A.
Appeal Heard: April 5, 2004, in Halifax, Nova Scotia
Held: Appeal allowed per reasons for judgment of Bateman, J.A.; Oland and Fichaud, JJ.A. concurring.
Counsel: Andrew Nickerson, Q.C., for the appellant
Dale Dunlop, for the respondent Dwayne Goreham
Thomas Hart for the respondents, Danny Shand and Ricky Smith
Reasons for judgment:
[1] This is an appeal from a decision of Justice Hiram J. Carver of the Supreme Court, dismissing the application of D.E. & Sons Fisheries Ltd. for an interim mandatory injunction.
[2] The dispute between the parties centres around fishing rights arising out of the lease of a lobster fishing licence. In the main action, the appellant in this matter, D.E. & Sons Fisheries Ltd., has sued Messrs. Goreham, Shand and Smith. Shand and Smith are the co-owners of the lobster licence. D.E. & Sons claims that it arranged to lease the licence for a period of three years, the lease to be held in the name of its nominee, Dwayne Goreham. D.E. & Sons now wishes to have the lease transferred to a different nominee and alleges that Goreham has refused to effect the transfer. For more detail about the background to this proceeding see the two previous decisions of this Court each reported as D.E. & Son Fisheries Ltd. v. Goreham at (2003), 213 N.S.R. 92d) 47; N.S.J. No. 71 (Q.L.) and at [2003] N.S.J. No. 331 (Q.L.).
[3] In an earlier application before Carver, J. he had granted summary judgment, ordering that the licence be transferred by Goreham to the appellant’s nominee. Goreham’s application for a stay of the licence transfer pending appeal was dismissed by Hamilton, J.A. ([2003] N.S.J. No. 71 (Q.L.)). A panel of this Court subsequently allowed Goreham’s appeal from the summary judgment and directed that the license, which by then had been transferred by Goreham to the appellant’s nominee, be returned to Goreham pending resolution of the main action ([2003] N.S.J. No. 331 (Q.L.)). This Court directed, however, that the transfer back to Goreham be postponed until a specified future date, to permit the appellant time to pursue the other claims for interim relief (an interim mandatory order for specific performance or a recovery order) which had been sought in the Supreme Court as an alternative to the summary judgment. As Carver, J. had granted the summary judgment, he did not deal with these additional claims.
[4] The appellant again brought the request for an order for interim mandatory specific performance (a mandatory injunction) before Carver, J. who dismissed the application. It is from that disposition that D.E. & Sons now appeals.
[5] The original interlocutory application, which resulted in summary judgment, was heard on January 9, 2003. The “renewed” application came before the court on October 29, 2003.
[6] The appellant says that Carver, J. erred in not permitting it to file affidavits containing information about the changed circumstances arising between the first and second applications; in misinterpreting the remarks of this Court in its decision setting aside the summary judgment; and, in failing to apply the correct test to the evidence before him.
[7] The appellant sought to file affidavit evidence at the second interlocutory hearing (October 29, 2003). It is not disputed that at a pre-trial conference the judge ruled that he could not receive that, or any additional, evidence. It was the judge’s view that he must hear the application solely on the basis of the material that had been filed at the time of the first hearing in January.
[8] It is our respectful view that in so ruling the judge erred. There was nothing in the decision of this Court which limited the renewal of the application for interim relief to the record existing at the time of the first application. Cromwell, J.A., writing for the Court said in this regard:
¶ 3 The Chambers judge did not deal with the rest of the plaintiff's application which included claims for an interim mandatory order and a recovery order. The disposition of the appeal should be without prejudice to the rest of the application being renewed in the Supreme Court by the plaintiff if so advised. I express no opinion on the merit, or otherwise, of those claims.
¶ 4 To allow a reasonable time for the plaintiff to pursue the rest of its application in the Supreme Court, I would direct that the District 34 lobster licence being Licence Control Number ALBA 1664 be transferred to Dwayne Goreham on or before 4:00 p.m. on November 14, 2003 unless otherwise ordered by a judge of the Supreme Court of Nova Scotia dealing with the balance of the plaintiff's application for interim relief.
(Emphasis added)
[9] Civil Procedure Rule 37 contemplates the filing of affidavit evidence in support of applications, provided certain time limits are met. It was apparently the judge’s understanding that, in permitting the application to be renewed, this Court intended that he consider only the record as it existed on January 9, 2003. It is our view that the remarks of this Court do not support the judge’s interpretation, nor did he articulate an alternative basis for limiting the record. Not having seen the proposed evidence we make no comment on its necessity or relevance to the application.
[10] As to the test applied by the judge in dismissing the application, it is our respectful view that he erred in failing to apply the law to the question before him. At issue was the strength of case the applicant must demonstrate in order to succeed on an application for a mandatory injunction. It is generally accepted that the test is more rigorous than that applied where a prohibitory injunction is sought. The debate before the judge, here, centred around whether the applicant must satisfy the court that there is a “virtual certainty of his success” on the main action, or whether it is sufficient that he establish “a strong prima facie case”. Counsel for Mr. Goreham argued that, because this Court had set aside the summary judgment, whatever the test, the appellant could not have a sufficiently strong case to warrant the grant of a mandatory injunction. This submission found favour with the judge who said, in dismissing the application:
The plaintiff’s counsel contends based on the facts I already found there was a strong prima facie case or a virtual certainty of success in favour of the plaintiff and where I found irreparable harm for the remedy of specific performance in granting Summary Judgment a mandatory injunction flows from that finding.
The defendant Dwayne Goreham’s counsel Mr. Dunlop contends that in coming to my decision of whether the plaintiff has made out a strong prima facie case, I need to consider the comment of Cromwell J.A. where he stated on appeal:
. . . In the present case, there were both a lack of clear proof of the claim and disputed facts going to the existence of the contract which was sought to be specifically enforced. . . .
I agree with counsel for the defendant Dwayne Goreham.
The test for a mandatory injunction and Summary Judgement may not be quite the same but as can be seen from the case law, the test for the plaintiff to meet for an interlocutory injunction is a high one.
Even though I ruled the test had been met for a Summary Judgment in my former judgment dated January 20, 2003, I must be cognizant of that comment by Justice Cromwell in my decision whether the plaintiff has made out a strong prima facie case to warrant granting the interlocutory mandatory injunction requested. Taking those comments into consideration when formulating my decision on all the evidence, I find the plaintiff, D.E. & Sons Fisheries Limited has not met the test for a mandatory injunction.
(Emphasis added)
[11] One of the circumstances in which this Court will interfere with a interlocutory order is when wrong principles of law have been applied (Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 (C.A.)). It was error here for the judge to roughly equate the tests for granting summary judgment and that for a mandatory interim injunction. Because summary judgment ends the litigation without a trial, the test is an onerous one. The plaintiff must "prove the claim clearly" and the defendant must be unable to set up a bona fide defence or raise an issue against the claim which ought to be tried (per Cromwell, J.A.: D.E. Fisheries and Sons, supra, at ¶ 2). An application for a mandatory interim injunction, in contrast, is not a final determination and is eventually superceded by the result after trial. Appropriately, the threshold test which the plaintiff (applicant) must meet is a lower one. The requirements for a mandatory interim injunction have been discussed and debated in numerous authorities. It suffices, here, to say, that the plaintiff is not required to “clearly prove” his claim to the exclusion of any defence which may be set up by the defendant. The application is, instead, assessed by the strength of the applicant’s case coupled with a consideration of the issues of irreparable harm and the balance of convenience. We agree with the submission of the appellant that the judge erred at law in failing to make an independent inquiry into the merits of the application and to clearly recognize that the test for a mandatory interim injunction differs from that for summary judgment.
[12] The respondent Goreham says that the appeal should be dismissed because the pleadings do not disclose a foundation for the interim relief requested. That issue is one to be determined by the judge on the hearing of the application.
[13] Accordingly, the appeal is allowed and the order refusing a mandatory injunction is set aside. The matter is remitted to the Supreme Court for hearing. The application shall be heard by a different judge, and, for further clarity, any findings made by Justice Carver in the two previous hearings of the application shall not bind the judge who hears the application anew. To add further clarity, we do not intend, in allowing this appeal and directing that the appellant is at liberty to proceed with the application for an injunction before another judge of the Supreme Court, that such be taken as a comment on the merits of the future application.
[14] We would order that costs of this appeal be fixed at $2000 inclusive of disbursements to be in the cause of the main proceeding, as between the appellant and the respondent Goreham. Messrs. Smith and Shand did not participate on the merits of this appeal.
Bateman, J.A.
Concurred in:
Oland, J.A.
Fichaud, J.A.